Globe Newspaper Co. v. Fenton, Civ. A. No. 89-2868-WD.

• Citation: 819 F. Supp. 89
• Decision Date: 29 March 1993
• Docket Number: Civ. A. No. 89-2868-WD.
• Parties: GLOBE NEWSPAPER CO., et al., Plaintiffs, v. John E. FENTON, Jr., as he is Chief Administrative Justice of the Trial Courts of the Commonwealth of Massachusetts, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

819 F. Supp. 89

GLOBE NEWSPAPER CO., et al., Plaintiffs, v. John E. FENTON, Jr., as he is Chief Administrative Justice of the Trial Courts of the Commonwealth of Massachusetts, et al., Defendants.

Civ. A. No. 89-2868-WD.

United States District Court, D. Massachusetts.

March 29, 1993.

Deborah Kravitz, Bingham, Dana & Gould, Boston, MA, for plaintiffs.

Peter Sacks, Atty. General's Office, Boston, MA, for defendants.

MEMORANDUM AND ORDERS

WOODLOCK, District Judge.

The cross motions for summary judgment before me put in issue the relative accessibility of closed criminal case files maintained in each of the 83 criminal trial courts of the Commonwealth of Massachusetts.

The defendant state custodians of these records concede that the First Amendment protects the right of any news reporter or member of the public to come to "any Massachusetts trial court clerk's office and immediately examine as many such files as he or she wishes ... because this sort of access plays a significant positive role in monitoring the fairness, efficiency, and overall performance of the Massachusetts criminal court system." Memorandum in Support of Defendant's Cross-Motion For Summary Judgment ("Defendant's Memorandum") at 1. However, acting pursuant to a relatively recent privacy regime, the Criminal Offender Record Information System, Mass.Gen.L. ch. 6 §§ 167-178B ("CORI"), they decline to permit unrestricted access to the alphabetical indices of parties, a convenient — formerly public — record which the Commonwealth has required trial court clerks to maintain since before ratification of the United States Constitution.¹

The defendants' concession of the public's constitutional entitlement to court documents, when coupled with their refusal to allow the public an effective opportunity to make use of the single most meaningful index to those documents in the courthouse, calls to mind Justice Jackson's description of another state scheme burdening a constitutional right the state was required to affirm. Unless access to court records is secured by an order mandating disclosure of the alphabetical indices, the Commonwealth's acknowledgment of First Amendment protection to closed criminal files will remain "only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." Edwards v. California, 314 U.S. 160, 186, 62 S.Ct. 164, 172, 86 L.Ed. 119 (Jackson, J. concurring).

Consequently, I will allow the motion of the plaintiff by declaring unconstitutional that aspect of the Massachusetts scheme pursuant to which the defendants and their subordinates have acted to deny access to the alphabetical indices maintained by the courts. Moreover, in order to insure that the CORI scheme will not otherwise cause indirectly an effective restriction in public access to criminal offender record information, I will also allow plaintiffs' motion by declaring that CORI may not be used to impose sanctions on any person for dissemination of offender information then available in judicial records open to the public.

-A-

FIRST AMENDMENT ACCESS

It is settled as a general proposition in "this circuit, along with other circuits, that there has been established a First Amendment right of access to records submitted in connection with criminal proceedings." Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989) (citations omitted). The Supreme Court has made clear that the question whether to afford public access to materials generated by a criminal proceeding is to be answered by reference to a two step analysis involving "considerations of experience and logic." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986); see also Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 314 (1st Cir.1992). First, there must be an inquiry into the historic availability of the materials; second, there must be inquiry into whether such availability "plays a significant positive role in the functioning of the particular process in question." Id.

If the two step analysis yields the conclusion that access to the material is presumptively open and public, a third dimension of inquiry is appropriate. Termed by the First Circuit in Pokaski "the traditional compelling interest/least restrictive means test,"² 868 F.2d at 505, the purpose of this inquiry is to determine whether the restriction on public access can

satisfy three requirements. First, the objectives of the statute must be sufficiently important; second, the means chosen by the state must effectively promote the statute's objectives; and third, the statute must not infringe upon the First Amendment any more than is necessary to promote those objectives.

868 F.2d at 505.

1. Historic Access

The right of public access to court records including indices was recognized at the very beginning of the development of the Massachusetts courts. When directing in 1639 that records should be kept of all judicial proceedings the General Court took care to provide that "every Inhabitant of the Country shall have free liberty to search and view any Rolls, Records, or Registers of any Court ..." Bellefontaine & Newman, The Early History of the Massachusetts Supreme Judicial Court, 1990 Annual Report of the Supreme Judicial Court Historical Society 5, 6 (1991).

In 1786 the Great and General Court — the legislature — of Massachusetts imposed a statutory duty on the clerks of the various courts of the Commonwealth

to keep up the Records of the said Court, or such part thereof, as shall by the said Court be assigned him, seasonably and in good order: and also to make and keep convenient and correct alphabetts (sic), to the said Records.

1786-87 Mass. Acts, ch. 57 (1786). The legislative intent behind this statutory direction was manifest. The increasing numbers of cases required a relatively basic index for effective access to the files.³

The legislative mandate that the clerks maintain alphabetical indices has continued uninterrupted for the past two centuries and is now codified at Mass.Gen.L. ch. 221 § 23, which provides:

Each clerk shall keep an alphabetical list of the names of all parties to every action or judgment recorded in the records and a reference to the book and page thereof; and, if there are two or more plaintiffs or defendants, the name of each and a like reference shall be inserted in its appropriate place in the alphabetical list.

To be sure, there were — and continue to be — practical limitations on the availability and actual preparation of alphabetical indices by the various clerks offices throughout the Commonwealth.⁴ But it is apparent that when the offices were open such indices as the clerks had prepared were made accessible to the public. By modern times the record keeping practices of the clerks offices had, with predictable idiosyncratic exceptions, crystallized into a general pattern for closed criminal cases.⁵ Closed criminal case files were referenced in docket sheets; the docket numbers for these cases were assigned in various inconsistent and changing ways over the years but were largely in chronological order; the docket sheets for the cases were gathered together in chronological order in docket books. Since the number of docket sheets would climb well into the thousands, the most efficient means to gain access to the docket books — if the docket number was unknown — was to consult the alphabetical index the clerk was required to keep. All of the relevant documents — including the alphabetical indices — were open to the public.

A countervailing legislative mandate regarding court indices was enacted in the 1970's, nearly two hundred years after the Great and General Court directed maintenance of "convenient and correct alphabetts" to court records. That mandate, as expressed in CORI and implemented by the Commonwealth's courts through Administrative Directive 1-84 — the two specific provisions challenged here — directs that "no alphabetical or similar index of criminal defendants be available to the public, directly or indirectly." Mass.Gen.L. ch. 6, § 172.

The "purpose and practical effect of the denial of public access to the alphabetical index" was concededly "to deny effective access to the records" maintained by trial court clerks. New Bedford Standard-Times Publishing Co. v. Clerk of the Third District Court, 377 Mass. 404, 414, 387 N.E.2d 110 (1979). This desired effect was in furtherance of the fundamental policy of CORI to resolve the conflict "between the individual's interest in privacy and confidentiality and the public's access to records of past criminal proceedings," id. at 413, 387 N.E.2d 110, by seeking to protect the privacy interests of criminal defendants after the cases against them had terminated. The Supreme Judicial Court of Massachusetts in its 1979 New Bedford Standard-Times Publishing Co. decision found nothing in the First Amendment to bar CORI's implementation of this policy.

A year later the Supreme Court of the United States struck a balance more clearly favoring First Amendment access as opposed to privacy interests in the conduct of criminal proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). The case law which has developed since Richmond Newspapers has reinforced a setting of the balance to favor First Amendment interests. See, e.g. Press Enterprise, supra; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Pokaski, supra. The Commonwealth's legislative policy of seeking to enhance privacy by denying effective access to the records of closed criminal proceedings, however, has not changed.⁶ Consequently the constitutionality of privacy restrictions must be addressed again in this context where the historic right of access to alphabetical indices was firmly established before and continued well after the enactment of the First Amendment.

2. Role in the...